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There are already laws in place to protect weaker members of society against unfair treatment. The Civil Rights Act (Title VII) was put in place at federal level to prevent discrimination and to ensure people are not harassed in their workplaces. This Civil Rights Act generally protects people from being discriminated against on the grounds of color, gender, country of origin, and religion. There are other laws in place to prevent employers’ discrimination.   

Question One: "What allegations must someone claiming workplace harassment make to initiate an Equal Employment Opportunity Commission (EEOC) case for the following forms of mistreatment or harassment?"

Harassment of the Sexual Variety: Quid Pro Quo

"Quid pro quo" is a Latin term that means getting something in return for giving something. In cases of sexual harassment, this usually means an individual is requested to provide or engage in some type of sexual activity with a superior in return for some workplace benefit such as promotion, higher pay, a change of job, etc. If a victim is to make a case to the EEOC, there are six essential conditions to be met:

  • The case should have a gender bias;
  • The case should relate to sex;
  • The claimant must belong to the protected group or class;
  • The claimant should not have agreed to the unwelcome request or advance;
  • The incident must have taken place during the period of employment;
  • The incident should have detrimentally affected the claimant’s position or job in the workplace.  

A Hostile Environment Caused by Sexual Harassment

If an individual claims their working environment was made hostile, they must prove they were subjected to sexual harassment i.e. that one or more colleagues or managers intimidated them or behaved towards them in a way that was sexually offensive. Additionally to meet the requirements of the quid pro quo principle, the conduct must be severe and/or continuous to the extent the claimant finds their work environment to be abusive and are unable to do their job. The harassment should be on going and persistent.

Harassment of the Religious Variety

Claimants can seek justice for harassment on religious grounds if they suffered derogatory and/or offensive comments by virtue of their religion or religious orientation. The offense should be severe and continuous to the extent it affects the individual’s ability to perform their job.

Harassment of a Racial Nature

An employee is considered to be the victim of racial harassment if they are frequently subjected to racially abusive comments, racial slurs, and/or behavior that demeans their race and thereby creates a hostile work environment. This type of harassment can come from the top (i.e. vertically), e.g., from a superior, from a colleague (i.e. horizontally), or from the culture within an organization. Incidents of harassment should first be brought to the employer’s attention unless the employer is the source of the actual harassment. The law requires the employer to take whatever corrective action is necessary if they are not to be held accountable for the problem.  

Question Two: "Since these are the legal terms used, how does sexual harassment differ from discrimination on the grounds of gender and sexual orientation?"

Incidents of sexual harassment occur when individuals are victimized or harassed by supervisors, fellow-workers, or even those who are not colleagues. The harassment can take the form of requests for favors of a sexual nature, the making of unwelcome sexual advances, the distribution of pictures, or by making offensive comments. Perpetrators are usually consistent in their requests to the victim, even to the point of it becoming obsessive or resorting to blackmail. Discrimination on the basis of gender concern cases where an individual becomes the victim of prejudice by virtue of their being a man or woman. Discrimination on the basis of sexual orientation occurs when gay individuals are denied particular chances in the workplace, e.g., are overlooked for promotion or certain jobs, or are not given the same pay/pay increases as colleagues.   

Question Three: "In what way does the Genetic Information Nondiscrimination Act (GINA) protect an individual whose parent has died from a genetic disease such as breast cancer from discrimination in the workplace?"

This legislation (Title II of the Act) says that employers may not hinder an individual’s job prospects or discriminate against them on the basis of genetic-related information. It is stated in the EEOC that the medical history of a family forms part an individual’s genetic information since it is used medically to assess the risk of a person contacting a disease or disorder, or being afflicted by some condition at a future time. Consequently, it is a requirement that employers do not discriminate against an employee who has a member of family with an inherited-type of cancer such as breast cancer since even death in such cases has no bearing on an individual’s productivity.

Question Four: "Give an example of behavior that may simultaneously be described as a quid pro quo and hostile environment type of sexual harassment. Describe how it could be argued that such conduct in the workplace is unlawful."

An example of these cases would be, say, where a boss or supervisor asks an employee out on a date, the employee refuses and does not appear interested, but the superior continues to harass the employee on a daily basis with similar requests. The supervisor may then, for example, inform the employee of a restructuring program within the company and tell the employee they will need to comply with requests to go on dates and essentially need to play their cards right if they want to keep their job and/or progress in their career.   

Even though this may cause the employee distress, they may still hold their ground. Then, when several advances have been unsuccessful, the supervisor fires the employee. This demonstrates the case was pervasive and severe, and that the work environment had become hostile to the point the employee could not work in it. This also demonstrates a quid pro quo situation since the employee has been asked for something in return for keeping their job. 

Question Five: "What is the primary legal reason why every place of employment should have a written or formal policy to protect against all types of harassment, apart from it being an “honorable” thing? 

A formal policy on harassment serves the primary purpose of reducing an employer’s liability and it is a way of educating employees about the different forms of workplace harassment. Similarly, such policies make the employee aware of the recourse or action open to them in the event they are subjected to harassment, and they explain the procedures for initiating a harassment claim. In the event of such incidents, the employer will not be held liable if they can show their company has preventative and remedial measures in place.   

Question Six: "Is it permissible for an employer to stipulate that only female employees deal with female customers and only male employees deal with male customers? Please use the appropriate legal terms in your answer."

The Civil Rights Act (Title VII) states that such a rule would violate the laws on gender discrimination. Gender preferences should not be specified when it comes to dealing with customers. Each employee should receive equal treatment and undertake identical tasks irrespective of gender except in cases where an occupational or job qualification specifies a particular task should be performed by a specific gender. A female attendant, for instance, would be required in the women’s fitting room of a department store.   

Question Seven: "Is there a minimum or maximum number of employees a company or employer should employ to meet the terms of these laws?"

The American Disability Act (ADA). Employers who employ 15 people or more are subject to this Act.

Genetic Information NonDiscrimination Act (GINA). Employers who employ 15 people or more are subject to this Act.

Immigration Reform and Control Act (IRCA). Employers who employ four people or more are subject to this Act.

The Pregnancy Discrimination Act. Employers who employ 15 people or more are subject to this Act (as amended from Title VII of the Civil Rights Act).  

Title VII. Employers who employ 15 people or more are subject to this Act, in the case of employees they employ for 20 or more weeks in a given year.

Question Eight: "Imagine the company you work for operates a policy against sexual harassment, but none covering racial, religious, and sexual orientation discrimination. Draft a statement (one or two paragraphs) to the Human Resources Director or your boss saying why you think it would be sensible to have a policy that takes account of the other types of harassment. Give an example of a real-life situation where such a policy could have prevented the occurrence of harassment or reduced a company’s liability in the event it did happen. Examples of such cases can be obtained from the EEOC website and you may cite any of these in the case you make. Include the amount the company you are referencing had to pay in fines or damages because of their failure to prevent discrimination."

Human Resources Department, It has been explained to me that this company does not have policies in place to protect against racial, religious, or sexual orientation discrimination. These policies are just as important as the policy that is in place in respect of sexual harassment. It is my belief that it is in the company’s interests to implement these policies.

After reviewing some EEOC cases as published on the commission’s website, a particular case regarding a company in Florida caught my attention. The company was forced to pay an employee over $70,000 in a case that involved disability, gender discrimination, and retaliation. The female employee had found that male colleagues were being paid over two dollars per hour more for doing the exact same job, which was confirmed in the subsequent lawsuit. The suit also showed that the employee’s request for some slight adjustments to accommodate her disability had been rejected. And the final part - the retaliation case - found the employee had been demoted and made to accept a reduction in pay for having raised concerns over the gender-related wage difference and suitable accommodation for her disability.

Analysis of Discrimination Case

The case chosen here for analysis is a fictional one entitled Hall vs St Paul’s University.

"Question One: In brief terms explain the act or law (statutes) in this case, the case facts, and the reasons why the case was in court.  What were the courts being asked to do by each of the parties?"

In the case of Tessa Hall v St Paul’s University, the complainant is an African-American called Tessa Hall who had initiated a lawsuit against her employer St Paul’s University owing to a racially-abusive and hostile work environment that prevented Ms Hall performing her job. Ms Hall claims her Caucasian female supervisor (Ms Jennifer Adams) made racial slurs and threatened to physically harm her.   

"Question Two: What was the court’s decision in this case and what resulted from the decision, e.g., which of the parties won, was it a final decision, or has the case being sent back to a lower court to reconsider a particular issue?"

It was decided at district court level that the evidence provided was not sufficient to show the workplace was a hostile environment. Additionally, since Ms Adams was not in fact Ms Hall’s supervisor, she was not empowered to make "tangible" employment-related decisions on, for example, hiring, firing, promoting, demoting, or any type of disciplining. She only had authority to allocate and oversee the work of employees. Lastly, it was the court’s finding that St Paul’s University was not responsible for employees’ actions. Ms Hall lodged an appeal but the decision of the district court was upheld by the appeals court.

"Question Three: Does this particular case and the resulting decision influence or change how workplaces operate from the perspective of employers? Please explain if any resulting changes are more beneficial for employees or employers?"

This case shows that the workplace can be made hostile for those who become victim of harassment by members of their own gender and that the latter scenario is possible. Therefore, this shapes the workplace landscape insofar as it can be seen that harassment is not necessarily confined to male/female relationships, but also extends to same sex people. The case has also allowed employers to review their anti-harassment rules and implement new policies to prevent more cases of hostile environments in the workplace.

"Question Four: Does the writer agree with the court’s decision in this particular case i.e. do they believe this case has strengthened or weakened employment law? Please provide a one paragraph answer to support your view."

This case strengthened and improved employment law because men and same gender people were not previously viewed as being potential victims of sexual harassment. It was shown in this case that men as well as women can be sexually harassed by members of their own gender. Therefore, both women and men are now covered by Title VII. Societal changes mean laws have to be amended to protect all people regardless of sexual orientation or gender.    

Law-Related Research: New Bill Pending Approval

"Question One: The bill to be discussed here concerns the Healthy Families Act HR932."

This particular law was first introduced on 2.12.2015 (in the 2015 to 2016 period) to the 114th congress.

"Question Two: Is this bill an amendment to existing legislation or does it create new law(s)?"

Currently, there are no federal or state laws in existence that oblige employers to allow paid sick leave to employees. With this bill, a new law will be created to change the current arrangements in the USA regarding paid time off. 

"Question Three: What impact does this bill have on existing employment legislation? Please give specific and sufficient detail so that readers will understand the pending bill."

If this bill becomes law, people who work in a company with over 15 employees who each work over twenty (20) weeks per annum will be allowed one hour of paid time off to cover illness for every thirty (30) hours they work. Companies with a less than 15-strong workforce may take the alternative option of 56 hours of paid sick time. The intention of the Healthy Family Act is to give employees sufficient time to look after their own health or to care for family members who are ill while giving them the assurance of financial security. Where any sick leave is not used, it can be brought forward to the following year. Employers should not seek details of the employee’s illness.   

"Question Four: Can the writer say whether they agree or not with this bill? Would they vote in favor of it if they were in Congress and why?"

The writer agrees with this bill and would vote for it to ensure employers in the private sector take care of their workers. Currently, over 40 million people are not afforded this comfort. Therefore, they have to decide whether to work when they are ill or suffer wage loss. This bill additionally allows employees to care for children and others in their families. Certain cities throughout the country have already passed laws on sick leave. 

 

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